Lead Opinion
{¶ 3} Appellant filed a motion to suppress the evidence and dismiss the obstructing charge. The trial court held a hearing on appellant's motion and subsequently denied the motion.
{¶ 4} On December 28, 2004, appellant withdrew his previous not guilty pleas and entered pleas of no contest to all four counts. The trial court found appellant guilty and imposed sentence. Appellant timely appeals the trial court's denial of his motion, raising one assignment of error for review.1
{¶ 5} Appellant argues that the trial court erred by finding that the police rightfully arrested appellant for obstructing official business, because appellant wrongfully prevented the officer from issuing a citation. This Court agrees.
{¶ 6} "The review of a motion to suppress presents a mixed question of fact and law for an appellate court." State v. Farris, 9th Dist. No. 03CA0022,
{¶ 7} The
{¶ 8} Patrolman Kathleen Sipos of the Wadsworth Police Department was called to the area of appellant's home regarding a noise complaint. Upon arrival in the vicinity, Patrolman Sipos discussed the complaint with a neighbor before proceeding to appellant's home. Patrolman Sipos testified that she heard loud music coming from one of the lower apartments in the building in which appellant lived. She testified that she knocked on appellant's front door and that appellant answered the door and told her to meet him at the back door. Out of concern for her safety, Patrolman Sipos refused to meet appellant at the back door and requested that appellant step outside to talk. Appellant refused, and started to shut the door. Patrolman Sipos testified that she grabbed and twisted the doorknob and slammed her side into the door in an effort to prevent appellant from closing the door. Patrolman Sipos testified that she could not remember whether she informed appellant about the call for the loud music before or just after appellant closed his door. Appellant conceded that the officer mentioned the noise complaint at some time. There is no evidence to indicate that the officer mentioned her intention to issue a citation regarding the loud music prior to appellant's closing the door.
{¶ 9} After appellant closed his front door, Patrolman Sipos called for backup and continued to talk to appellant through the door. Ultimately, appellant joined the officer outside to discuss the noise violation. Patrolman Sipos further informed appellant that he had obstructed her official business by his earlier actions, and she placed him under arrest.
{¶ 10} Patrolman Sipos and the backup officer Patrolman Andrew Blubaugh placed appellant in the patrol car. Both officers testified that appellant requested that one of the officers enter his apartment and get his medication for his bipolar condition. Appellant disputes that he asked the officers to enter his home to get any medication, but the trial court did not find appellant's assertions in that regard to be credible.
{¶ 11} Both Patrolman Sipos and Patrolman Blubaugh testified that they had no need to enter appellant's apartment and that they would not have entered the apartment, but for appellant's request that they do so to retrieve his medication.
{¶ 12} Patrolman Blubaugh testified that appellant refused to tell him where to find the medication. The officer testified that he, therefore, planned to look in areas where he would expect someone to keep medicine that must be taken on a regular basis, for example in a bathroom medicine cabinet or on a table. He testified that he entered the apartment and, as was his usual protocol, immediately scanned the area for anything that might pose a threat to him or his partner. During the security scan, Patrolman Blubaugh noticed "green vegetable material" on a coaster on a table and the casing of an ink pen, which had been used as a smoking device. Based on that finding, appellant was charged with possession of drugs and drug paraphernalia.
{¶ 13} Appellant argues that he was privileged to close his door on Patrolman Sipos, so that she improperly arrested him for obstruction of official business. Because the officers had no authority to arrest appellant under the circumstances, he argues that the subsequent search of his home which lead to his drug charges violated his
{¶ 14} The defendant was convicted of obstructing official business, pursuant to R.C.
"No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within the public official's official capacity, shall do any act that hampers or impedes a public official in the performance of the public official's lawful duties."
{¶ 15} Specifically, appellant argues that he was privileged to refuse access to Patrolman Sipos, when she was investigating the noise complaint, so that his closing the door cannot form the basis of the charge of obstructing official business.
"The United States Supreme Court has repeatedly held * * * that searches and seizures inside a home without a warrant are presumptively unreasonable. An occupant can act on that presumption and refuse admission. The
This Court has subscribed to such a view and held that the initial consent involved in opening a door can be revoked by a defendant through the privilege against unreasonable searches. State v. Cummings (Jan. 16, 2002), 9th Dist. No. 20609.
{¶ 16} To the extent that this Court took a contrary stance in Statev. Holmes, 9th Dist. No. 22174,
{¶ 17} As a result, the State failed to prove beyond a reasonable doubt that appellant was acting without privilege when he closed the door. Id. at ¶ 20. While an unlawful arrest does not per se invalidate a consent to search, we find that under the circumstances presented, the evidence seized from appellant's home must be excluded. See State v.Nathan, (Nov. 16, 2001), 2d Dist. No. 18911.
{¶ 18} The question presented following our holding that appellant's arrest was unlawful is "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." (Citation omitted.)Wong Sun v. United States (1963),
Judgment reversed, and cause remanded.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Wadsworth Municipal Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App. R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App. R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App. R. 30.
Costs taxed to appellee.
Exceptions.
Whitmore, P.J., Moore, J., concurs.
Notes
Concurrence Opinion
{¶ 20} While I concur in the majority's ultimate determination, I would reverse on other grounds.
{¶ 21} I do not feel that this Court needs to reach the issue of whether appellant has a constitutional privilege to shut his door on the officer, as I believe no probable cause existed to believe that appellant had obstructed official business. First, appellant did not unequivocally deny the officer entry into his home. He invited the officer to another door, which the officer rightfully declined. Once appellant shut the door, he continued to cooperate with the officer, speaking through the door. Accordingly, I do not believe that probable cause existed to determine that appellant had hampered or impeded the officer's official duties. R.C.